Winner Takes Some

April 30, 2007

The Supreme Court's recent partial-birth abortion decision solidifies a big shift in abortion law--but probably not for the reason you think. The most important language in the opinion does not substantively alter the scope of the right to choose, nor does it expand the right to life. It is not the absurd language by Justice Anthony Kennedy that so infuriated many feminists by suggesting that states could justify abortion restrictions by the need to protect women from the consequences of their choices. A reader not steeped in the peculiar corner of American constitutional law that deals with abortion would not necessarily even notice it. It is a terse, legalistic section with significant--and, I suspect, constructive--implications for the future politics of abortion in America:

"The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider [health] exceptions is by as-applied challenge. ... This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used."

I know what you're asking: What on earth does this mean? Let's back up and unpack it.

In general, there are two ways to attack a law as unconstitutional. You can attack the whole law in what's called a "facial challenge" and try to get the entire law struck down. Or you can argue that the law, while perhaps generally constitutional, is unconstitutional when applied to you under a particular set of circumstances. The current challenge to the partial-birth law challenged it on its face. In most situations, the Court will not strike down a law on a facial challenge if constitutional applications of that law exist. The idea is that a law that's constitutional most of the time should not be invalidated because one can imagine circumstances in which its enforcement would violate someone's rights. As a consequence, laws are routinely upheld against facial challenge but then subjected subsequently to narrower "as-applied" challenges. One current example: The Court upheld the McCain-Feingold campaign finance law's restrictions on sham "issue ads" that are really election commercials, but it recently heard arguments from a group that contends that its issue ads are real, not shams, and that the law is thus stifling its legitimate speech.

Abortion law has been something of an exception to the usual rules. The Court has tended to evaluate abortion restrictions on facial challenge even though many applications of those laws are indisputably OK under existing precedents. Bans on so-called partial-birth abortion, for example, are clearly constitutional to the extent they have exceptions for situations in which the life or health of the mother is at stake. Yet the Court struck down state partial-birth abortion laws back in 2000 on facial attack--that is, the justices struck down any enforcement of those bans, including the overwhelming preponderance that pose no constitutional difficulty even under a broad conception of abortion rights.

The trouble with this approach to evaluating abortion regulations is that it sets up a winner-takes-all game in abortion politics. Pro-lifers try to get restrictions passed that push the line of what the Court will allow. Pro-choicers then try to get those restrictions thrown out. The Court then has to make a binary choice between allowing constitutional principles it has articulated to get whittled away and throwing out a whole law that is both politically popular and constitutionally unproblematic most of the time.

Last year, the Court, unanimously and quite self-consciously, began flirting with a different approach. Confronted with a New Hampshire parental-notification law that contained no health exception, it refused either to uphold the law and whittle down the scope of federal abortion rights or to strike it down entirely on the basis of the tiny number of hypothetical cases in which the statute might run afoul of the court's principles. Rather, acknowledging that it was acting in tension with its previous abortion jurisprudence by not letting the facial challenge succeed, the Court suggested that the law might stand with an injunction blocking the small number of possible unconstitutional applications of it.

Fast forward now to the federal partial-birth law, which differs only slightly from the state laws the Court struck down seven years ago. The law (an uncommonly stupid one, in my view) does not forbid any abortion; it merely regulates which abortion procedure a doctor might choose. It contains an exception for situations in which saving the woman's life requires the specific procedure it bans; it does not contain an exception for situations in which her health short of that hangs on the procedure used. The parties presented conflicting testimony concerning whether any situations exist that fit between these two categories. The Court majority, following the path it sketched out last year in the New Hampshire case, decided to let the law stand as a facial matter and let the parties fight later about what, if any, applications need to be blocked. The court's message in these two recent abortion decisions, last year's unanimous one and this year's fiercely split one, seems to be that legislatures can now pass abortion restrictions that cross constitutional lines; they just can't expect to see those restrictions enforced past those lines.

It's a big change. And, at least in some respects, it's a big win for anti-abortion activists. After all, laws restricting abortion that the Court would only recently have struck down facially, it will now uphold. This creates a sense of momentum on the anti-abortion side, a sense that new restrictions are possible, that the Court is changing, that Roe v. Wade is growing more precarious. On a more practical level, it means that new abortion restrictions can presumptively go into effect--rather than getting blocked in their entirety--and it puts the burden on opponents of those laws to identify the specific situations in which they should be stymied.

Yet while I favor abortion rights, I'm not at all sure this is a bad thing. For starters, the court hasn't altered the underlying doctrine: A woman whose health depends on getting a proscribed abortion, still has a right to get one. And Justice Kennedy's opinion openly invites suits to establish the parameters of whatever health carve-out may be necessary to protect that right. In dissent, Justice Ruth Bader Ginsburg complains with some legitimacy that "the Court offers no clue on what a 'proper' lawsuit might look like." And she worries that even after such a suit, "women whose circumstances have not been anticipated by prior litigation could well be left unprotected." It's a fair concern, but I'm not convinced it's a problem careful court attention cannot address. The result of this next round of litigation could well be a partial-birth abortion ban with a judicially-created health exception--a health exception that looks a whole lot like the one whose absence generated the facial challenge in the first place. Pro-choicers, in other words, still have the legal tools to make sure abortion laws remain constrained by the very precedents that are supposedly being eroded.

The advantage to the Court's new posture is that it stands to make abortion fights less binary. Instead of a winner-takes-all approach to abortion laws, the Court's new approach imagines breaking up the cookie: Pro-choicers get to block those applications of a statute that they can plausibly claim violate the Constitution; pro-lifers get to keep the rest of the law. Such a judicial posture certainly won't deflate the abortion controversy, but it could let some of the air out of the balloon. In a hot-button area like abortion, there is much to be said for the Court's not throwing out more law than it needs to.